In our opinion: Caution is necessary when Utah transit projects engage in the practice of eminent domain

Published: Wednesday, July 9 2014 12:00 a.m. MDT

Updated: Wednesday, July 9 2014 10:26 a.m. MDT

Michael Allegra, general manager of Utah Transit Authority, leaves the Draper Town Center TRAX Station at the grand opening of the Draper TRAX extension in Draper.

(Kristin Murphy, Deseret News)

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The use of eminent domain to condemn and acquire private property in order to accommodate a necessary government function has been part of this country since its inception. The Constitution requires that landowners receive “just compensation” for any land taken for “public use.” The specific definition of what constitutes “just compensation,” or what constitutes “public use,” in each instance is seldom agreed upon by both parties. Consequently, this is a process that is ripe for abuse if not conducted with appropriate oversight.

The Utah Constitution reaffirms the principle of just compensation for public use. Both the Legislature and the Utah Supreme Court have attempted to address the issue on multiple occasions in an effort to be clear and protect property owners’ basic rights. That may have been part of the reasoning behind the law that clearly states that the Utah Transit Authority "may not acquire property by eminent domain." Under Utah law, UTA is a local district political subdivision, not a state agency. However, another law allows the Utah Department of Transportation to act on UTA’s behalf to do precisely that "for the establishment or operation of a public transit district."

So UTA can’t declare eminent domain, but UDOT can do it for them.

At first glance, this seems like a muddled approach to take. But there is a certain wisdom in requiring an extra hoop for government to jump through when exercising eminent domain authority. Use of eminent domain is generally so disruptive that checks on the process are good. There are several recent instances in which UTA’s efforts to obtain property have frustrated landowners. One is the owner of the Hamblin Custom Furniture Frames factory, which is at the center of a current application of UTA’s borrowed authority. Another involves landowner Michael Carlson, who owned 15 acres in Draper that were taken by UDOT/UTA.

In the case of factory owner Kerry Hamblin, “just compensation” for his business — which UTA wants to condemn in order to build a central bus garage — would be $2,000,000. UTA insists that the value is only $260,000.

With Carlson, of his 15 acres of land taken by UDOT, the Utah Supreme Court ruled last month that UTA needed only 1.2 acres to construct the Draper TRAX line. State law permits UDOT to take more land than is necessary and then to sell or exchange for other highway property that is necessary. But the Supreme Court remanded the case to the 3rd District Court in order to consider whether that state law comports with the Utah Constitution.

It is important to address issues of private property, just compensation and public use in a careful manner. We are pleased that the Utah Supreme Court has asked to review the action of UDOT and UTA in this manner. Whether the authority to engage in eminent domain is “borrowed” from UDOT or not, public entities must always exercise extreme caution when seeking to use this sweeping power.

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